B-94324, DEC 14, 1972

B-94324, DEC 14, 1972

CIVILIAN EMPLOYEE - IMPROPER SEPARATION - REFUND OF LEAVE PAYMENT DECISION DISALLOWING A REQUEST BY GEORGE A. HARRISON FOR AN ADJUSTMENT OF ANNUAL LEAVE BALANCE BASED ON CLAIMANT'S OFFER TO REFUND THE LUMP SUM LEAVE PAYMENT RECEIVED INCIDENT TO A SEPARATION FROM THE FEDERAL SERVICE BETWEEN JUNE 27 AND SEPTEMBER 14, 1947. SINCE THE COURT OF CLAIMS AWARDED BACK PAY FOR THE PERIOD OF IMPROPER SEPARATION IN A STIPULATED JUDGMENT WHICH HAS FIXED THE RIGHTS OF THE CONCERNED PARTIES, THE COMP. GEN. WILL NOT PERMIT THE SUBSTITUTION OF LEAVE TIME IN LIEU OF A REFUND OF THE LUMP SUM LEAVE PAYMENT.

TO MR. GEORGE A. HARRISON:

WE REFER TO THE LETTER OF MISS NELL LUNDAHL, PERSONNEL STAFFING SPECIALIST, DEPARTMENT OF STATE DATED SEPTEMBER 19, 1972, BY WHICH SHE FORWARDED FOR OUR CONSIDERATION YOUR REQUEST FOR AN ADJUSTMENT OF YOUR ANNUAL LEAVE BALANCE BASED ON YOUR OFFER TO REFUND THE LUMP-SUM LEAVE PAYMENT YOU RECEIVED FOR THE PERIOD OF YOUR SEPARATION FROM FEDERAL SERVICE BETWEEN JUNE 27 AND SEPTEMBER 14, 1947.

THE INFORMATION PRESENTED SHOWS THAT YOU WERE SEPARATED FROM THE POSITION YOU HELD IN THE DEPARTMENT OF AGRICULTURE BY REDUCTION IN FORCE ON JUNE 27, 1947. ALTHOUGH THE CIVIL SERVICE COMMISSION DETERMINED THAT YOUR SEPARATION HAD BEEN IMPROPER BECAUSE NON-STATUS EMPLOYEES HAD BEEN RETAINED IN POSITIONS FOR WHICH YOU WERE QUALIFIED YOU WERE NOT REINSTATED BY THE DEPARTMENT OF AGRICULTURE SINCE YOU HAD OBTAINED OTHER EMPLOYEMNT WITH THE WAR ASSETS ADMINISTRATION. A LUMP SUM PAYMENT FOR ANNUAL LEAVE WAS MADE TO YOU AT THE TIME OF YOUR SEPARATION AND AFTER YOUR REEMPLOYMENT YOU REFUNDED THAT PORTION OF THE LUMP-SUM PAYMENT WHICH COVERED THE PERIOD AFTER YOUR REEMPLOYMENT. FURTHER, AS A RESULT OF AN ACTION YOU BROUGHT IN THE COURT OF CLAIMS YOU WERE AWARDED BACK PAY FOR THE PERIOD OF YOUR IMPROPER SEPARATION UNDER A STIPULATED JUDGMENT WHICH IS RECORDED AT 117 CT. CL. 814 (1950).

YOU NOW WISH TO REFUND TO THE GOVERNMENT THE LUMP-SUM PAYMENT YOU RECEIVED AND RETAINED COVERING THE PERIOD OF YOUR IMPROPER SEPARATION AND HAVE RECREDITED TO YOUR CURRENT ANNUAL LEAVE ACCOUNT THE AMOUNT OF LEAVE WHICH WAS CHARGED YOU DURING THAT PERIOD. IT IS YOUR POSITION THAT THE WAR ASSETS ADMINISTRATION SHOULD HAVE TAKEN SUCH ACTION AT THE TIME YOU WERE REEMPLOYED IN VIEW OF THE CIVIL SERVICE COMMISSION DETERMINATION THAT YOUR SEPARATION HAD BEEN IMPROPER AND THE LATER COURT OF CLAIMS JUDGMENT IN YOUR FAVOR.

WE NOTE THAT YOUR CASE WAS SUBJECT TO A COURT JUDGMENT UNDER WHICH YOU WERE ALLOWED BACK PAY FOR THE PERIOD IN QUESTION WITHOUT REDUCTION OF THE SUM OTHERWISE DUE TO ACCOUNT FOR THAT PART OF THE LUMP-SUM LEAVE (WORD ILLEGIBLE) HAD RECEIVED COVERING THE SAME PERIOD. EVEN THOUGH THE LUMP- SUM LEAVE PAYMENT MAY NOT HAVE BEEN CONSIDERED SPECIFICALLY IN ARRIVING AT THE STIPULATED JUDGMENT, WE MUST CONSIDER THE COURT OF CLAIMS JUDGMENT TO HAVE FIXED THE RIGHTS OF THE PARTIES, INCLUDING YOUR RIGHTS WITH RESPECT TO ANNUAL LEAVE EARNED PRIOR TO THE SEPARATION. FURTHERMORE, TO NOW PERMIT YOU TO MAKE THE REFUND AS SUGGESTED WOULD REQUIRE A RECONSTRUCTION OF YOUR LEAVE ACCOUNT FOR EACH YEAR BEGINNING WITH 1947 AND THE APPLICATION OF MAXIMUM ACCUMULATION LIMITATIONS. SUCH ACTION MIGHT WELL BE IMPOSSIBLE BECAUSE OF THE DESTRUCTION OF NECESSARY LEAVE RECORDS.

IN VIEW OF THE ABOVE, WE MUST CONCLUDE THAT A REFUND OF THE BALANCE OF THE LUMP-SUM PAYMENT YOU RECEIVED INCIDENT TO YOUR SEPARATION ON JUNE 27, 1947, WITH A LIKE CREDIT OF THE ANNUAL LEAVE REPRESENTED THEREBY IS NOT PERMISSIBLE.